When I hear the phrase, “out of an abundance of caution,” I reach for my . . . decoder. Because it’s not always a lawyer who uses it. Actually, I know of only one legitimate use of the term. All the rest are illegitimate because they hide the truth.
The legitimate use is pedestrian and common, but technical and not well known. It means a mortgage where the lender requires extra collateral. It really is extra, since “a prudent lender would extend credit based on a borrower’s income and/or other collateral,” as the Federal Code states (12 CFR § 614.4240). Moreover, the additional collateral, “is not required by statute, regulation, or the institution’s policies.” By definition, it’s a caution in securing the loan that goes beyond prudence.
By extension we can allow, as also legitimate, any steps of extra safeguarding which a lawyer insists upon to protect the power or property of his client. Apparently, that was the original meaning of the phrase, in 17th Century law, ex abundante cautela, “by way of excessive caution.”
A clear, recent example of this legitimate use was the double swearing-in of President Obama. When Chief Justice Roberts swore in Barack Obama as president, he inadvertently changed the order of the words of the oath. Instead of saying “I will faithfully execute the office of president of the United States,” Roberts said, and Obama repeated, “I will execute the office of president to the United States faithfully.”
To put aside even the remotest doubt that could be cast on the president’s power, the oath was administered again. “Out of an abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time” – the president’s press secretary explained, presumably using language crafted by attorneys in the Office of Legal Counsel.
But now we slide into illegitimate uses, where the phrase hides something. These are better said to be just what they are. Here’s the first: Suppose an attorney advises his client to take certain defensive steps to avoid lawsuits – say, the physician who practices “defensive medicine,” or the school that stops a dangerous activity because of possible injuries. These steps are not taken from an abundance of caution, but just due caution – prudence – given a certain kind of risk aversion. Declare the trade-off openly, and then let others judge whether it is appropriate.
The most egregious bad use is to hide a real danger. “Boeing has determined – out of an abundance of caution and in order to reassure the flying public of the aircraft’s safety – to recommend to the FAA the temporary suspension of operations of the entire global fleet of 737 MAX aircraft.” Thus, after the Ethiopian plane crash.
Ordinary caution was enough to ground the planes. But Boeing’s management explained the decision as excessively cautious to protect themselves. It’s the lawyer’s attitude reaching where it does not belong, now protecting management against customers.
Today, given a threatening COVID-19 pandemic, we see all kinds of other misuses. If a public activity is canceled because of Dr. Anthony Fauci’s logic – that those who congregate, even if young and not at risk, may nonetheless spread the disease to the elderly or others at risk – the event wasn’t canceled out of an “abundance of caution.” Rather, it’s a case of a subsidiary group making a sacrifice for the common good of political society.
Why is it important to describe it accurately? Because then we have a chance of evaluating the trade-offs properly. Was it necessary? What is the common good anyway? Suppose the group is not in fact subsidiary to political society – that its authority and the goods it seeks come from above, as Our Lord put it (Jn 3:5-6)?
I mean the Church, of course. Then surely something like the logic of the Religious Freedom Restoration Act should apply – only the least restrictive means consistent with a compelling public interest can reasonably be sought. Across the board bans, which are simply more efficient, or protect those in authority, cannot be justified under “an abundance of caution.”
Moreover, despite the appeal of invisible-hand explanations, when the common good is at stake, guidance from a central authority is practically necessary. Uncoordinated responses by many at once, all aiming to promote what they take as the common good, can lead to disaster.
We must all stay inside to flatten the curve. But for how long? What criterion marks the terminus ad quem? Are the health of at-risk people and the capacity of the health care system the only relevant components of the common good?
The large corporations have less difficulty, but few small businesses can shut down for two months. Would no degree of bankruptcies, and no severity of a financial depression, suggest that less “abundantly cautious” solutions are preferable?
And then “abundance of caution” comes actually to mean various unsavory things, associated with social signaling and pressure.
The big ski areas shut down, canceling a doubtful couple of weeks of spring skiing, out of an “abundance of caution.” Indeed, transmission while skiing, or on a lift? They can point to their social consciousness. But were they even making a profit then, or just looking for bragging rights about how late in the season they stayed open, easy enough to forego for another source of prestige?
Or what about those businesses that really can remediate all genuine risks of spread but are forced to close by group pressure, on pain of appearing to be free-riders? It’s an “abundance of caution” some will say, dismissing the loss, which others sustain, but not themselves.
Right, one welcomes any sign of care for others in our angry society. Just about everyone benefits from the shock of recognizing that most “necessities” are not necessary (not even toilet paper – since most of us have leaves in the backyard), and a forced retreat.
But while we’re at it let’s put lawyerly language aside and “let your yes be yes, and your no no.” (Mt. 5:37)
*Image: Plague in Rome by Jules Elie Delaunay, 1869 [Museé D’Orsay, Paris]